Our dubious Constitution (continued)
isomin at gmu.edu
isomin at gmu.edu
Thu Mar 16 20:25:07 PST 2006
In brief answer to the good points raised by various posts:
1. I was not intending to comment on the general merits of parliamentary vs. presidential government, only on the narrower issue of the ease of removing the executive before the end of his/her term.
2. I agree with Sandy that it's more important to have a competent and successful US president than German chancellor, British PM, etc. But this fact also increases the cost of mistakenly removing a good leader. In addition, it magnifies the danger of creating a very short time horizon for the president resulting from the fact that he might be removed for making a policy decision with highly visible short-term costs but important offsetting longterm benefits. Reagan's policies in 1981-82 (when he was intensely unpopular), Truman's in 1947, and Lincoln's in 1862 and 64, are important examples of the latter.
3. I also agree that 2nd term presidents face fewer constraints, in some ways, than those who are looking towards reelection. However, 2nd term presidents go generally want to advance their party's interests and secure their "place in history." These preferences give them at least some strong incentives not to pursue dysfunctional policies.
4. While I cannot possibly defend this point in detail here, my view is that the average quality of US executive leadership over the last 50 years has been at least as high as that of other major democracies such as Britain, France, and Germany, and distinctly higher than that in several democracies (e.g. - Italy) where the executive is unusually easy to remove during his term. Although a true comparison would require us to control for other variables, I would tentatively conclude that there is little reason to believe that making a president easier to remove would increase the average quality of presidential performance.
Like Sandy (though for partly different reasons), I'm unhappy with Bush's performance in office. But if we are considering a constitutional fix, it must be based on a generalizable conclusion, and not just on dissatisfaction with the present incumbent.
Ilya Somin
Assistant Professor of Law
George Mason University School of Law
3301 Fairfax Dr.
Arlington, VA 22201
ph: 703-993-8069
fax: 703-993-8202
e-mail: isomin at gmu.edu
Website: http://mason.gmu.edu/~isomin/
----- Original Message -----
From: Sanford Levinson <SLevinson at law.utexas.edu>
Date: Thursday, March 16, 2006 10:36 pm
Subject: RE: Our dubious Constitution (continued)
> One consequence of teaching my course on constitutional design is
> that I increasingly regard it as miraculous that any country ever
> writes a constitution and establishes a stable (and, even more so,
> successful) government. I agree with Miguel that new democracies
> often are crisis prone (in part because they emerge in times of
> crisis). What is best, I suppose, is if there is a dominant
> leader--George Washington, Nelson Madela, David Ben Gurion, Lech
> Walesa--who can take the helm, and I'm not sure whether it matters
> all that much whether it's as president or prime minister. The
> real problem emerges, I think, if there is no such leader, so
> that, as in Iraq right now, one flails about trying to figure out
> who is best equipped to take on a perhaps impossible task. Again,
> it's not clear whether it matters all that much whether it's a
> presidential or prime ministerial system. On balance, though, I
> think it's especially unfortunate to be saddled with a so-so
> president whom one can not get rid of short of an extra-
> constitutional overthrow (or military coup). It may also be,
> frankly, that the US is exceptionial, not in the standard sense of
> American exceptionalism, but, rather, because the US President
> really does have exceptional powers vis-a-vis the entire world
> order, and it really matters far more who is US president than,
> say, the president of France or, if truth be known, the PM of
> Great Britain. The harm that Berlesconi can do is pretty much
> confined to Italy. But any US President is a "world-historical
> figure," for better and worse.
>
> As I was making feeble efforts to clean out my office this
> afternoon, I cam across an article by Jeff Rachlinski on
> psychology and consitutional design, suggesting that there is real
> merit in the kinds of forced encounters with various views that
> any legislative system promotes, as against the kind of insularity
> that presidentialism seems to encourage. Also, legislative
> decisions by definition require persuading quite a few people,
> whereas there is the mystique of presidential decisiveness. I'm
> not sure how much to push such an argument, but I found it very
> interesting, especially when combined with some other stuff I've
> read recently on how aggregated individuals tend to be more
> accurate in estimates about the world than any given individual,
> however smart. (This, of course, is one of the virtues of markets.)
>
> sandy
>
> ________________________________
>
> From: conlawprof-bounces at lists.ucla.edu on behalf of Miguel Schor
> Sent: Thu 3/16/2006 8:18 PM
> To: isomin at gmu.edu
> Cc: DavidEBernstein at aol.com; CONLAWPROF at lists.ucla.edu;
> Mark.Scarberry at pepperdine.eduSubject: Re: Our dubious Constitution
> (continued)
>
>
> I don't think that the differences between parliamentarism and
> presidentialism can be collapsed that readily. Deciding whether to opt
> for efficiency in government by facilitating dependence between the
> legislature and the executive or whether to opt for constitutional
> roadblocks to policymaking by instituting independence between the
> branches is an important design choice that has real world
> implications.Sandy's question was whether a new democracy should
> seek to thread the
> needle by adopting presidentialism while facilitating the removal of
> incompetent presidents by the legislature. I think it would be a bad
> idea. New democracies are crisis prone and find it difficult to
> fashioneffective government. Facilitating the removal of
> presidents would only
> exacerbate this problem. Presidents can be and often are elected
> without a majority in the legislature. It would be far too easy,
> therefore, to remove them in a presidential system that allowed
> for a
> vote of no confidence. Miguel
>
> isomin at gmu.edu wrote:
>
> >I'm not sure that impeachment is really all that rare. Out of 43
> US presidents, 2 have been impeached (Johnson and Clinton) and one
> was forced to resign for fear of impeachment (Nixon). At least 4
> or 5 other presidents died early enough in their terms that there
> was little opportunity to impeach even if people had wanted to do it.
> >
> >So some 8-10% of all US presidents who served a full term have
> either been impeached or forced to resign to avoid it. That is a
> percentage comparable to the percentage of British prime ministers
> or German chancellors who have been forced to resign for similar
> reasons. French presidents, by the way, are actually more
> difficult to remove during their terms than American ones (and
> none ever has been, despite considerable malfeasance in several
> cases).>
> >True, Clinton and Johnson remained in office thanks to the
> Senate, but both ended up in very weak political positions.
> >
> >As compared to other major democracies, the US head of state
> doesn't seem to be all that much more difficult to remove than is
> the norm. Given the risk of false positives (removing good leaders
> when they should be kept in place), I would hesitate to make
> impeachment too much easier than it is now - this despite my
> considerable dissatisfaction with President Bush and his "big
> government conservatism."
> >
> >
> >
> >
> >Ilya Somin
> >Assistant Professor of Law
> >George Mason University School of Law
> >3301 Fairfax Dr.
> >Arlington, VA 22201
> >ph: 703-993-8069
> >fax: 703-993-8202
> >e-mail: isomin at gmu.edu
> >Website: http://mason.gmu.edu/~isomin/
> >
> >
> >
> > -----------------------------------------------------------------
> -------
> >
> > The House can impeach the president any time it wants to, and the
> > Senate can convict. It's only by custom that impeachment is so
> rarely> utilized. We discussed this in my Con Law class this
> year, and most
> > students seemed to agree that there should be a lower threshold for
> > impeachment. The fact that Jimmy Carter managed to stay
> president for
> > four years is enough evidence for me that the threshold should
> be lowered.
> >
> > In a message dated 3/16/2006 7:37:50 PM Eastern Standard Time,
> > Mark.Scarberry at pepperdine.edu writes:
> >
> >
> > So I ask once more why it is such a great feature of our
> Constitution> that there is no way to get rid of a president
> deemed> "incompetent," an
> > "idiot," or a "liar" but what appears to be a majority of
> Americans?> (It simply does not make sense that "good" would
> represent a majority
> > response if the most frequent single response is
> "incompetent.") How
> > many of you, advising countries adopting new constitutions,
> would> advise
> > that they take a leaf rom the US book and make it impossible to
> > get rid
> > of a non-criminal president who is "merely" "imcompetent,"
> an "idiot,"
> > or a "liar"? And if so, why? I should note that I am
> impressed by
> > some
> > recent literature suggesting that it might not make all that
> much a
> > difference whether a country goes the parliamentary or
> presidential> route. And I have earlier conceded that there
> are, no doubt,
> > incompetent, idiotic, of mendacious prime ministers who exercise
> > enough
> > control over their coalitions, by means fair or foul, to
> maintain> themselves in power.
> >
> >
> > David E. Bernstein
> > Visiting Professor
> > University of Michigan School of Law
> > Professor
> > George Mason University School of Law
> > http://mason.gmu.edu/~dbernste
> >
> >------------------------------------------------------------------
> ------
> >
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